*1 2002, subject to May States the United firearms disabilities.
federal
CONCLUSION supports us on appeal
The record before that Atandi was government’s unlawfully present the Unit-
illegally or of 18 U.S.C. purposes
ed States time he was discovered
922(g)(5)(A) am- of firearms and various possession illegal presence An alien’s
munition. country depend upon for- does order, petition an 1-130
mal removal stay in not authorize an alien to
does Accordingly, we RE-
United States. judgment of the district
VERSE Atandi,
dismissing against the indictment proceedings. for further
and REMAND Darryle GIPSON,
Adrian
Petitioner-Appellee, JORDAN, Warden, Respondent-
Lenora
Appellant.
No. 02-6261. Appeals,
United States Court
Tenth Circuit.
Aug. *2 Holmes, Attorney R. Assistant
William (W.A. of Oklahoma Drew General Edmondson, Attorney Okla- General briefs), homa, on the Oklahoma with him OK, City, Respondent-Appellant. for the Defender, Otto, Federal Public Susan M. OK, the Petitioner- City, for Oklahoma Appellee. LUCERO, SEYMOUR, and
Before CASSELL,* District Judges, and Circuit Judge.
LUCERO, Judge. Circuit Jordan, Warden appeal, Lenora State Correctional of the James Crabtree (“Oklahoma”) Helena, Oklahoma Center grant of ha- of a conditional seeks review prisoner, state relief to Oklahoma beas appeal issue Gipson. Adrian sole remarks before is whether Gip- referenced sentencing which impermissibly in- prior son’s convictions to be free from fringed upon jurisdiction jeopardy. We exercise §§ 1291 and to 28 U.S.C. pursuant grant of habeas relief. and REVERSE I tried second- Gipson was he had been degree burglary. Because or more felony convicted of two previously offenses, subject he was provi- offender under habitual Oklahoma’s years. a minimum sion for term 12); see also Okla. (Jury Instructions (habitual 51.1(B) 21, § offender Stat. tit. * Cassell, by designation. States G. United The Honorable Paul Utah, sitting Judge District the District (R. 144-45.) trial, sentencing Gipson further stated guilt At provision). “[prosecutorial] comments which admitted to the were consolidated— jurors punish Appellant asked the ten jury to decide leaving the charge, thus felony jurors for each caused the in- only his sentence. *3 right to Appellant’s violate be free from Gipson had been jury the that formed jury’s jeopardy,” double and “[t]he felony offenses: convicted of six previously imposition greater of sentence ten times fear, child, robbery by injury to a minor statutory than the maximum for the actual of an au- second-degree burglary, burglary prejudice offense reflects the of the prose- machine, tomobile, burglary vending of a (R. 145.) In argument.” cutor’s In clos- uttering forged instrument. and that, alia, Gipson’s face of inter argued Gipson has ing, prosecutor’s jury comments caused the for recidivism and stated: propensity jeopardy rights, double violate his you, gentle- ladies and I would submit affirmed conviction Gipson’s OCCA men, .... appro- that at a minimum an sentence, concluding Gipson’s sen- years for would be ten priate sentence tence “neither nor was excessive the result convictions, including [prior] each of the of misconduct.” Gipson seven, today, which makes this one here Oklahoma, F-97-165, slip No. at 2 op. you I’m is that I think an telling so what 3,1997). Nov. (Okla.Crim.App. sentence, mini- at least a appropriate Gipson petition filed a federal habeas sentence, mum in this would be 2254, § pursuant again to 28 U.S.C. chal- years. lenging his sentence on double 185.) (R. jury, instructing In grounds. magistrate judge issued a clarified that: district court report, considering objections revised after has admitted that he defendant [t]he Oklahoma, which recommended raised may convictions. You previous has 6 corpus grant- a conditional writ of habeas convictions previous not consider these ing relief on you. in the case proof guilt as of before 2002, July court claim. In the district previous consider the convic- You adopting magistrate’s issued an order determining purpose tions for the report. appeals, arguing now Oklahoma you if find the defendant is failed to accord the district court Burglary guilty of the crime Second to the decision proper deference OCCA’s present case. Degree denying relief. 12.) recom- (Jury Instructions at seventy years imprisonment, and mended II accordingly. Gipson was sentenced matter, a threshold we must deter- As appeal On direct to the Oklahoma Court of review appropriate mine the standard (“OCCA”), Gipson ar- Appeals of Criminal affirmance of due OCCA’s that his sentence was excessive. gued peti- filed his sentence. Because making argument, he course April tion habeas relief after urged: determining the excessiveness “[i]n Antiterrorism and the effective date sentence, should review (“AEDPA”), Penalty Act Effective Death upon influences possible improper Rogers v. provisions apply. AEDPA’s See (10th assessing punishment” namely, Gibson, 173 F.3d 1282 n. — early Cir.1999) release prosecutor’s reference (citing Murphy, Lindh v. con- Gipson’s prior from the sentences for U.S. S.Ct. (1997)). that if a claim provides
victions and the
exhortation
AEDPA
court,
in state
seventy years.
adjudicated
on the merits
to sentence him to
did not
Conversely, if the state court
petitioner
to a
relief
habeas
grant
we will
merits,
the claim
on the
a claim
court
decide
that the state
establish
if he can
barred, we
procedurally
otherwise
to,
is not
“contrary
or involved an
decision
and the
de novo
of,
address
the issue
clearly estab-
application
unreasonable
2254(d)(1)
does
requirement
§
deference
law,
by the
determined
as
lished Federal
Lytle,
196 F.3d
States,”
Aycox
apply.
or not
See
of the United
Supreme Court
Our standard
determina-
unreasonable
based
“was
on whether
depends
of review therefore
light of the evidence
facts
tion
jeopar-
Gipson’s double
the OCCA denied
proceeding.”
in the State
presented
here,
Where,
on the
2254(d)(1),
dy claim
merits.
§
28 U.S.C.
*4
that the
suggesting
no
there is
indication
clause,
to”
“contrary
Under
of a
reach the merits
state court did not
“if the state court
only
relief
grant
we
claim,
that a state court
have held
we
to that
opposite
at a conclusion
arrives
merits”
a decision “on the
even
reaches
on a
Court]
by
Supreme
[the
reached
it fails
to mention
federal
when
either
decides
if
state court
law or
of
question
or
or cite
state
basis for
has on a
differently
[the Court]
than
a case
conclusion.
support
law in
of its
federal
facts.”
materially indistinguishable
of
set
Id. at
362, 413, 120
529 U.S.
Taylor,
Williams
in consideration
In the instant
1495, 146L.Ed.2d 389
Under
S.Ct.
clause,
improper prose
that
Gipson’s argument
re
application”
“unreasonable
jeop
his double
cutorial
violated
“if the state court
comments
only
provided
lief is
found that
ardy rights, the OCCA
legal prin
governing
the correct
identifies
prosecutori
sentence was not the result
decisions
Supreme Court’s]
from
ciple
[the
al misconduct. Thus because
OCCA
principle
that
unreasonably applies
but
in the face of his
upheld Gipson’s
case.” Id. Thus
sentence
prisoner’s
facts of
vi
argument
prosecutorial
misconduct
simply
a habeas writ
not issue
may
we
jeopardy rights
we treat
“independent
our
olated his
we conclude
because
“adjudication
decision as
state-court de
the OCCA’s
that the relevant
judgment
result,
merits,”
to its
and defer
even
clearly established federal
applied
cision
Rather,
reasoning
expressly
is not
state
though its
incorrectly.
erroneously or
law
do
Having determined proper *5 comments suggesting that the punish AEDPA, standard of under review we note defendant prior homicide); for a Lesko v. that the federal circuits addressing similar Lehman, (3d 1527, 925 F.2d 1545-46 Cir. diverged claims in have determining the 1991) (applying a general standard to eval- standard for evaluating prosecutorial uate whether trial was rendered funda- misconduct at issue. Generally, improper mentally unfair when prosecutor prosecutorial made remarks will not warrant comments instructing that it federal relief habeas unless the remark “so a “duty” score,” to infected “even the in the trial with reference as to unfairness conviction). to prior make the defendant’s resulting conviction a murder denial of However, process.” due Donnelly DeChristoforo, proceed as we will analyze 637, 643, below, 416 1868, U.S. 40 because we cannot conclude that (1974). If, however, L.Ed.2d 431 the chal the OCCA’s decision upholding Gipson’s lenged statements “effectively deprived sentence contrary clearly was es- of specific defendant law, constitutional tablished we need not ques- reach the right, a may habeas claim be established tion of which standard apply of review to requiring proof without that the entire tri prosecutorial to the claim of in misconduct al was thereby rendered fundamentally un the instant case.
fair,”
only
but rather
the violation
Ill
may not
“deemed
beyond
be
harmless
doubt.” Mahorney
reasonable
v. Wall
AEDPA,
Under
to warrant
re-
habeas
man,
(10th
917 F.2d
474
Cir.
lief, Gipson must show that
the OCCA’s
1990)
omitted).
(quotation
determination, affirming Gipson’s sentence
Thus,
example,
for
the Fifth
and impliedly finding
challenged
in
Circuit
Rogers
Lynaugh,
606,
prosecutorial
848 F.2d
610
remarks did not violate his
Cir.1988), reasoned that
prosecuto-
where
right against
jeopardy,
“legally
2001);
Gibson,
Romano v.
239
jeopardy rights meritless,
F.3d
his double
“or
—
(10th Cir.2001).
Ellis,
1164-66
contrary,
To the
otherwise
in its
result[s]
denial.” See
holding
Gipson's
J.,
(ex-
OCCA's
(Brorby,
dissenting)
sentence
was not the result of plaining citing only miscon- that a state court decision duct, prosecu- his federal renders adjudicate claim—that state law nonetheless fed- merits). torial misconduct caused the violate eral claim the
1198 of- the same for punishments unreasonable,” multiple Aycox, see factually fense,” id. at 611. F.3d at miscon alleged prosecutorial Clause Jeopardy Double Const, V, although border Amendment, amend. in instant duct U.S. Fifth mis than the “multiple pun- line, straightforward imposition is less prohibits offense,” Critically, North Rogers. same presented conduct ishments Pearce, con prior U.S. six referencing Gipson’s prior Carolina (1969), and Rog L.Ed.2d victions, unlike the and S.Ct. through the the states fa against ers, addressed enforceable appeal, Gip- On Amendment. propensity and his Fourteenth cility for rehabilitation Circuit on a Fifth analogy of his light relies son future crimes to commit court concluded case which He prior stated: convictions. Dou- violated the comments two to prison for [Gipson] to Sending Rogers, See Clause. Jeopardy ble deterred five hasn’t years or four intro- the State Rogers, at 606. F.2d short anything if him, I don’t know and prior three defendant’s evidence duced long a up period him as locking sentencing during the felony convictions him. to deter going can is time we following made the trial phase gentlemen, telling you, ladies I’mSo jury: argument Adrian way keep I think for a final his fourth conviction This is is to committing crime Gipson from robbery, Robbery, bur- felony offense. up. locked keep him I again. submit robbery and now glary (R. 185.) felony one of those *6 you that each to Moreover, by means although we no years. He at least 10 worth offenses spe- linking of a prosecutor’s the commend put You first 12 on the three. received Gipson’s to each of years cific number up with you come together those analysis is crimes, to our dispositive prior he has discounting what that is And Rogers court in that unlike the the fact penitentia- of the out got since he done (decided AEDPA amend- prior you you if to But I ry. submit a de novo ments), engage not in we of those to just each allocate miscon- alleged prosecutorial of the review up come with 40. felony you convictions inclined were we in case. Even duct this Rogers in Although the State Id. at grant relief on to closing in argued that the deter- uphold the OCCA’s we must ca- Rogers’ to argument spoke primarily that it persuaded unless we are mination for need rehabilitation pacity for unreasonably applies or “contravenes deterrence, noted Fifth Circuit specific law, is based or clearly federal established say ... not what prosecutor “did of the determination on an unreasonable implied ... about prior offenses the three presented.” evidence light in of the facts rehabilitation,” facility for [defendant’s] we have Because 196 F.3d Aycox, rather, themselves prior “the offenses but acted the OCCA to infer that no basis years.” to worth ten were be each said determinations, unreasonably in its factual ultimately jury at 611. Given that clearly established of a in the absence forty-year term advocated selected at the holding Court contrary Supreme Rogers court prosecutor, id. decision, we its time the OCCA issued “naturally and jury reasoned that See result. must defer to OCCA’s prosecutor’s necessarily” understood -, Alvarado, 541 U.S. Yarborough exhortation assess argument as “an 2140, 2142, 124 S.Ct. alleged context of prosecutorial miscon- (2004). duct, the Ninth Circuit has held that pros- ecutorial comments a sentencing Supreme
There is no
Court precedent
that referenced
prior
defendant’s
convic-
precisely addressing prosecutorial miscon-
tions do
deprive
in
duct
the context of
the defendant of
recidivism statutes.
a fair
However,
Supreme
explicitly
they
has
trial when
are presented
Court
articulated that
enhanced
through “the lens of an aggravating fac-
recidivist conduct does not violate the Dou-
Beardslee,
tor.” See
and sentenced for a crime when the CASSELL, con- Judge District sitting by duct underlying that had been offense con- designation, dissenting. in sidered determining the defendant’s Because I believe the Oklahoma Crimi- previous conviction);
sentence for a
see nal Court of Appeals did not reach the
States,
also Nichols v. United
511 U.S.
Gipson’s
claim,
merits of
jeopardy
I
double
114 S.Ct.
apply a de
would
standard of
novo
review
(1994) (holding that
history provi-
criminal
to that
Reviewing
claim.
that claim de
in
sions
the Sentencing Guidelines and
novo, I agree with the District Court that
state recidivist statutes “do
change
Gipson’s seventy-year sentence was ob-
penalty imposed for the earlier convic-
tained in violation
prohibition
of the
tion”);
Missouri,
Moore v.
159 U.S.
against
Therefore,
jeopardy.
double
I re-
(1895)
tive
claims,
rejecting Gibson’s
two-page opinion
applies to
of review
standard
deferential
Propo-
Regarding
I.6
Proposition
including
adjudi-
a “claim that was
raising
prisoners
only:
I,
opinion stated
the OCCA’s
sition
proceed-
court
in State
merits
on the
cated
Prop-
find
our decision we
“In reaching
grant
a
we will
For such
ings.”
was
sentence
Appellant’s
I
osition
only if the state
petition
a
relief to
habeas
limits,
ex-
and
neither
statutory
was
within
to,
in-
“contrary
was
court decision
mis-
prosecutorial
nor the result of
cessive
of,
application
unreasonable
an
volved
two
also cited
opinion
The
conduct.”7
law, as deter-
Federal
clearly established
concerning prosecutorial
cases
Oklahoma
of the United
court
Supreme
mined
misconduct.8
on
unreasonable
based
or “was
States”
sentence, the ma-
single
Relying light
of the
the facts
of
determination
re-
of
a deferential standard
jority applies
pro-
in the State
presented
evidence
decision because
to the OCCA’s
view
hand, for a prop-
other
theOn
ceeding.”
that the
suggesting
is no indication
“there
the state court
claim
erly-presented
the merits
did not reach
state court
merits,
deferen-
on the
failed to decide
differently.
I read
record
claim.”9
apply, and
does not
of review
tial standard
concedes, the
majority implicitly
As the
novo.3
the issue de
address
we will
that it was address-
indicated
OCCA never
the deferential
majority asserts
jeopardy
ing the merits of
double
here because
applies
review
standard of
Moreover,
of the
the text
OCCA’s
claim.
that the
suggesting
indication
“there is no.
suggests the OCCA treated
opinion
terse
merits.”4 I
not reach the
court did
state
solely
as a
Gipson’s double
concluded
District
as the
disagree;
criti-
misconduct claim.
prosecutorial
carefully-reasoned
adopting
below
explains that
opinion
in the
cal sentence
judge, the
magistrate
opinion
Proposition I
rejected Gipson’s
the OCCA
opinion sug-
state court’s
indicators in
statutory
his sentence “was within
because
actually
reach the
gest the OCCA
limits,
nor
excessive
and
neither
merits.
Thus,
misconduct.”
result
procedural
back-
review
A brief
pains to mention
issues
the OCCA took
clarify the issues.
ground will
(1)
sen-
authorization
(2)
claim before the
limits”),
(“within
raised
statutory
tence
OCCA,
other claims
along with
nature of
sentence
disproportionate
(3)
prose-
(“was
excessive”),
prose-
excessive
sentence was
[not]
(not
possi-
pros-
referred
result of
improperly
cutor had
cutor’s
“the
misconduct
misconduct”).
All
parole.5
natural infer-
*8
early release on
The
bility of
ecutorial
to mention
interwoven
a
from
OCCA’s failure
separate claims were
ence
these
jeopardy
un-
claim is that the
Gipson’s
(apparently
I”
double
single “Proposition
confusion).
it.
reach
In
of later
fortunate source
F-97-165,
Oklahoma,
slip. op.
2254(d).
No.
6.
v.
§
1. 28 U.S.C.
3, 1997) (R.
22-23).
(Okla.Crim.App. Nov.
at
2254(d)(1), (2).
§
2. 28 U.S.C.
22).
(R.
at 2
at
7.
Id.
1174,
Lytle,
1177
Aycox
196 F.3d
3. See
v.
State,
(citing Applegate
904 P.2d
at 2
v.
8.
(10th Cir.1999).
State,
1995);
(Okla.Crim.App.
Jones
764
130
1988)) (R.
removed).
at
(Okla.Crim.App.
(emphasis
P.2d 914
at
4. Ante
1196
removed).
(emphasis
9. Ante
1196
5. R. at 141-144.
a
pros-
jurors
The distinction between standard
punish Appellant
to
ten
felony
each
charge
jurors
ecutorial misconduct
caused the
Gipson’s
to violate
Appellant’s right
to be
double
double
important.
is
free from
jeopardy, by subjecting him to multiple
petitioner’s
aWhere
habeas
claim is based
on prosecutorial
misconduct the
petitioner
punishments for the same offense.”
fact that
the OCCA did not address the
must demonstrate that
distinction
general
between
prosecutorial
misconduct “made
trial so
[the]
fundamen
misconduct claims and those claims which
tally
deny
unfair as to
him
due
process.”10
implicate a specific
right
constitutional
is
However,
impropriety
“when the
com
further evidence that the OCCA did not
plained
effectively deprived
the defen
reach the
merits of
jeopar-
double
specific
dant of a
right,
constitutional
dy claim.
claim habeas
be established without
conclusion,
To avoid this
ar-
state
requiring proof that the entire trial was
gues here that
rejection
the OCCA’s
of the
thereby
fundamentally
rendered
unfair.”11
prosecutorial misconduct claim was neces-
Thus, in
Saffle,12
Coleman v.
for example,
sarily
rejection
applied
this court
a fundamental fairness
claim because “double jeopardy was the
standard to misstatements of a prosecutor
only point raised in support of the prose-
because the
did not “implicate
statements
cutorial misconduct
specific rights
other
of the accused such as
argument.”15
position
state’s
has,
on this
put
issue
it
the right
right
to counsel or the
to remain
charitably,
Court,
evolved. In the District
silent.”13
argued
state
initially that Gipson was
While much of
brief to the
procedurally barred from even pursuing a
general prosecutorial
OCCA focused on
double jeopardy claim because he never
misconduct,
clearly
he also
alleged a viola- presented a double jeopardy
claim the
tion of
right
to be free from double
event,
In any
the state’s current
OCCA.16
jeopardy. Specifically, Gipson argued that
position
simply
untrue. As the District
asking
jurors
“[t]he
noted,
Gipson “raised two different
re-punish Appellant on crimes for which arguments relating
mis-
Appellant already had served the time....
conduct,
implicated
one of which
his double
essence,
the comments which asked
jeopardy rights
and one that did not.”17
637,
Donnelly DeChristoforo,
416 U.S.
12.
Gipson
while
prosecutor,
comments of
that the
told
improperly
ample, that
jury.25 As
prejudice
not
improper, did
early release
possibility
jury of the
below, “It is
concluded
the District Court
get
attempted
improperly
and
citations whether
these
con- unclear from
into
parole issues
and
pardon
to take
statements
prosecutor’s
found
these OCCA
forth
putting
After
sideration.18
that did
‘fair statements’
Gipson were
misconduct
prosecutorial
claims of
prosecuto-
rise to the level
instance
case
first
this
“The
continued:
”
misconduct,
the OCCA
rial
whether
then
argued....
improperly
also
misconduct, but deter-
prosecutorial
found
argument
jeopardy
forth
sets
because
was not warranted
mined
above,
that his
reversal
states
and,
plainly
as noted
outcome
did not ‘affect the
jeopardy”
the statements
free from double
to be
“right
”26
of the trial.’
pleading
violated.19
been
that his double
artful in
may not have been
best
history, the
procedural
this
Given
context of
was raised in
jeopardy claim
have
might
can
said is the OCCA
that
be
prosecutorial
complaints about
general
merits, but
claim on the
decided
However,
only confirms
this
misconduct.
sug-
opinion
in the
indications
specific
not reach
the OCCA
my belief
circum-
not.
In such
it did
gest
de-
instead
Gipson’s double
it
stances,
hold that
this Circuit’s cases
was “not the
the sentence
only that
ciding
deference.
give
AEDPA
inappropriate
As
misconduct.”20
prosecutorial
result of
that this Court’s decisions
It
well be
before,
language
“the
noted
this Court has
adjudicated
a claim has
on when
been
on whether
focuses
[AEDPA]
are,
Judge
in the
merits
words
whether
adjudicated, not
‘claim’ was
“appar-
and
... consistent”
Brorby, “not
’
Gipson’s dou-
adjudicated.”21
‘case was
cases
conflict[ing]”.27 But from the
ently
have
appear
claim does
ble
will
principle
“[w]e
can be distilled
adjudicated.
been
decision
to a state court
grant deference
and Effective
the Antiterrorism
opinion is under
reading of
OCCA’s
This
pro-
Penalty Act unless the decision
Death
case citations
by the two
further supported
State,22
some
indication
vides
affirmative
Applegate
in it. The first
the federal
court did not consider
state
vouching.
involved
princi-
majority adopts
“the
claim.”28 The
case concluded
court
“there is no
stating
that where
ple
fair com
were all
comments
suggesting that the state
indication
and not admitted in
evidence
ments on the
then AEDPA
the merits”29
by the
did not reach
case cited
second
error.”23 The
State,24
apply.
involved deference should
OCCA,
also
Jones
25.
Id. at 916-17.
at
18. R.
144.
19. R. at 145.
Report
Recommenda-
Supplemental
26.
(R.
115).
(Nov. 2001)
tion
Report
Recommenda-
Supplemental
8, 2001) (R.
(Nov.
tion
Mullin,
(10th Cir.
24. 764 P.2d
1203 majority petitioner’s appeal, My disagreement with the OCCA stated is an “affirmative indi-. rejected that I believe there that “this contention” had been did not reach the cation” that the OCCA two state cases.34 The two cases cited claim on the merits. The only question the OCCA addressed indication that persuasive most affirmative whether the court required to instruct failed to consider the double the OCCA jury failing about the result of their that court’s mention of jeopardy claim is reach a concerning unanimous decision supporting claims and cases those other any Neither case involved punishment.35 claims, jeop- of the double without mention Eighth question Amendment about mis ardy claim. That alone is sufficient take leading jury regarding its role. This of AEDPA’s deferential this case outside Court treated the citation of these two subject it instead standard review cases on state law issues as sufficient rea to de novo review. determining son for the OCCA had very This conclusion was reached adjudicated the Eighth Amendment There, facts in Neill v. Gibson.30 similar claim on the merits. AEDPA Court refused deference
this
This Court reached
similar result
claim on habeas
reviewing a federal
where
Mulling.36
In
Ellis v.
Ellis ar
of the state court was based
the decision
gued that the trial court had violated his
peti
The
solely
on state law
grounds.31
process rights by refusing
federal due
claim in Neill was whether
tioner’s
schizop
permit
present
him to
evidence
trial court
in refus
capital case the
erred
support
In
claim
this
Ellis
hrenia.37
that, if it
ing
failed to
instruct
the Supreme
cited
Court case of Chambers
punish
decision as to
reach a unanimous
rejected
Mississippi.38
OCCA
his
ment,
judge would
under state law the
Reviewing
claim.
this
petition
habeas
enter a sentence of life imprisonment.32
overturned the
decision
misinformed the
had
OCCA and found that Ellis had been de
during closing arguments that the defen
process.
nied his
to due
More im
dant would have to be retried.33
Neill was
fact that
portant for this case is the
sentenced to death and his
convicted and
apply
Court did not
the AEDPA standard
appeal.
on direct
Neill
conviction affirmed
of deference. This Court noted that Ellis
post-conviction relief in the
sought
then
claim
a federal constitutional
raised
OCCA, raising
regard
both a state claim
“upheld the exclusion
but that the OCCA
ing
failure to instruct
about the
without
reference to Ellis’s Chambers
consequences
agree
of their failure to
report proper
holding
Eighth
a federal
Amendment
re
...
ly
under state law
Be
was excluded
misstatement
garding
rejecting
cause the
did not consider Ellis’s
about the need for a retrial.
OCCA
denied,
State,
538,
(Okla.
(10th Cir.2001),
Brogie
P.2d
30. 278
cert.
F.3d
State,
835,
145,
Crim.App.1985);
806 P.2d
537 U.S.
123 S.Ct.
Boltz
(Okla.Crim.App.1991),
de
cert.
(2002).
nied,
502 U.S.
(1991).
L.Ed.2d 109
Id. at 1053.
36.
federal
n had
of the
each
“meticulously addressed”
.
denovo.”39
claims,
single
for the
except
30
petitioner’s
the same
effectively reached
Court
This
which
petition
in the habeas
claim at issue
In that
v. Gibson.40
in Romano
conclusion
individually or
resolve[d]
“not
either
was
novo standard
a de
applied
court
this
court
Because
state
generically.”45
claim where
a habeas
of review
oth
respect
with
meticulous
was so
claims but
federal
raised
petitioner
it could
claims,
that
stated
Court
er 29
only under
claims
these
“addressed
OCCA
not
did
the OCCA
“only conclude
Gibson,
Thus,
v.
in Neill
law.”41
state
claim”46 While
on this
a decision
render
Gibson,
Mullin,
Romano
Ellis
meticulously
in
court
Duckett
the state
only
court cited
state
fact
sole
one, thus
the claims but
all of
dealt with
not relate
did
which
opinions
court
state
remain
suspicion that the
raising
strong
taken to
was
involved
question
the federal
merits,
on the
not dealt with
was
ing issue
consti
indication
affirmative
anbe
case—-that
proposition
general
on the
not reached
question was
tutional
ad
one issue while
to address
a failure
merits.
sus
raises
least
dressing others —also
issue with
decided
a state court
That
the double
case that
picion
this
also taken
law was
only to state
reference
on the merits
was
addressed
issue
merits
indication
affirmative
as an
the OCCA.
reached
were not
federal issue
appar
Indeed,
cases have
this Court’s
Mull
Knighton
decision
this Court’s
indication
found an affirmative
ently even
There,
“applied
OCCA
in.42
where the
reached
a claim was not
determining
evidentiary rules”
state
sum
nothing more than
did
state court
other
petitioner’s
evidence
whether
this
In Smith v. Scott47
marily affirm.
at trial.
introduced
properly
crimes
under
grant
deference
refused
Court
us, this Court
before
petition
a habeas
On
OCCA,
ci
without
where the
the AEDPA
to a
AEDPA deference
apply
declined
summarily
authority,
af
tation to law
evidence,
to use of that
challenge
federal
ruling against
a lower court
firmed
appellate
Oklahoma
concluding that “the
This
post
an ex
facto claim.
petitioner
it.”43
address
specifically
did
review
give deferential
declined to
Court
an affir
taken it as
has also
Court
This
decision,
holding that
simply
such a
issue was
a federal
indication that
mative
[peti
not address
“[did]
OCCA’s decision
where
on the merits
not addressed
the mer
claim ‘on
post facto
tioner’s] ex
addressed some
thoroughly
state court
”48
its.’
claims,
completely
but
petitioner’s
cases,
con-
we
all these
should
Thus,
Under
in Duck
address
failed to
another.
Gip-
not resolve
clude that
OCCA
Mullin,44,
rejected AEDPA
ett v.
denied,
Cir.2002),
(10th
cert.
Ellis,
44. 306
982
F.3d
Because
see affirmative indications
against
sion
petitioner
far outweigh the
that the OCCA did not reach the double
risks to
reasons,
the state. For these
I
claim,
I am not faced with the
believe it
generally
be wise
require
question
difficult
what to do with
the state to shoulder the
proving
burden of
debatable indications. But
I
were
faced
that a
actually adjudicat-
federal claim was
circumstances,
with such
I
quite
would be
court,
on
ed
the merits in state
than
adjudication
reluctant
rather
presume
an
'
presuming
otherwise.
sure,
this
presump
merits. To be
such a
though, regardless of
precise place-
tion
support
draws some
from this Court’s
burden,
ment of the
I am
convinced that
Ay
Lytle,49
decision
cox v.
which found
adjudicate
the OCCA did not
adjudication
gave
on the merits and
claim on the merits and therefore that
deference to a state court opinion that
AEDPA
appropriate.
deference is not
articulated no
But
reasoning.
at the same
time, such a presumption seems at odds
II. Merits of the Double
Scott,
with such decisions as Smith v.
Jeopardy Claim
proceeded
where we
to review an essen
tially summary
then,
affirmance de
Turning,
novo. Per
the merits of
haps
will
address en
these
Jeopardy
banc
the Double
Clause of the
cases,
apparently conflicting
Judge
as
provides
person
Constitution
that no
shall
Brorby
suggested.50
has
But
fur
pending
“subject
be
for the same offence to be
clarification,
ther
I
put
would err
the di-
twice
in jeopardy of life or limb.”52
(White
concurring);
64.Ante
theAs
sentenced.
separately
be
would
the Double
very things
prior offenses—the
out,
sentencing jury
point
jurors
appellees
If the
forbids.
Clause
Jeopardy
murder
prior
consider
properly
could
than
more
Gipson even
punish
wanted
circum-
“aggravating
offenses,
conviction
prior
of the
for each
ten
However,
jury had no
....
they
stance”
making clear that
penalty
impose
the death
authority
But at the end
so.
to do
free
feel
should
pros-
The
itself.
murder
the Nicholls
followed
jury apparently
day,
jury had
suggestion
ecutor’s
“starting
unconstitutional
clearly improper.72
do so was
“duty” to
ex-
the District
analysis. As
point”
of the avail-
below,
very fact
“the
plained
Rogers v.
then cited
The Third Circuit
range
this broad
ability of
‘ex-
that “an
proposition
Lynaugh
aof
finding
makes the
is,
what
part,
multiple punishments
to assess
hortation
”
inescapable.
violation
double
is a violation
offense’
for the same
degree
a wide
jury,
given
even
prosecu-
clause.73
the exact
chose
sentencing possibilities,
is it
jury: “When
questions
tor’s
prosecu-
recommended
sentence
to make it
going
stop?
Who
going
*15
tor.”
com-
place
his
might appear
stop?,”
How-
the
of deterrence.
context
ments
Lehm
Lesko v.
of
Circuit case
The Third
ever,
“clearly
was
held it
the Third Circuit
Lesko
reasoning.
parallel
an70 follows
the
to ask
prosecutor
for the
improper”
guilty to one murder
pled
previously
had
for a murder to
again
Lesko
jury
punish
Sentencing
another.
trial for
and was on
pled guilty.
previously
had
which he
During his
separately.
to be done
was
implore
prosecutor
the
murder,
the second
closing arguments
“duty”
punish
their
jury that it
the
you
“I
jury,
the
want
told
the
But
convictions.
Gipson
previous
for his
penal
a death
this: We have
to remember
is the same—like
underlying principle
the
now,
is
Right
score
ty for
reason.
implored
jury was
jury, Gipson’s
Lesko’s
two,
nothing.
society
...
Lesko
John
previous
again for
Gipson
punish
it
going
is
stop?
it
When
will
When
convictions.
stop?
it
That
going
is
to make
stop? Who
found
majority
Circuit
duty.”71
Third
your
One last case mentioned
were
Ninth
statements
prosecutor’s
brief discussion. In
that
deserves
Woodford,74
“clearly
of Beardslee
improper”:
case
Circuit
mur-
trial for two
on
the defendant was
suggestion
prosecutor’s
[T]he
pros-
“score,”
closing
During
statements
ders.
“duty” to even
jury
had
sev-
a third
two,
murder
...
referred to
Lesko
ecutor
at “John
which stood
jury
they
told the
im-
occasions and
jury to
eral
invited the
Society nothing,”
pun-
to determine what
were “chosen
only
the death sentence
pose
who
for the defendant
ishment should be
murder,
for the Nicholls
also
Miller
but
now for three
you, responsible
sits before
which Lesko
crime to
murder —a
prose-
noting that
While
he murders.”75
and for which
already
guilty,
pled
Rogers, 848 F.2d at
(Mar.
(quoting
73. Id. at 1545-46
Report and Recommendation
69.
611).
2000) (R.
Cir.1991).
(3rd
70.
Finally,
majority
states that while
a trial error
doubt about whether
of feder-
prosecutor urged
to sentence
injurious
al law had ‘substantial and
effect
years
prior
ten
“each”
convictions,
determining
jury’s
or influence in
ver-
these statements were “clari-
fied”
instruction
telling
dict,’
that error is not
harmless.”83
I
can-
Id. at 584.
80.
issue. But after even sentence, jury,
year sentence the minimum
being told that maxi- no that there was years and
twenty sentence, exactly the sen- imposed
mum the Dis- sought. As
tence the reasoned: Court below
trict urged ... remarks
The prosecutor’s (and punishments jury to assess new prior multiple punishments)
thus Petitioner as to which
convictions final sen- and served
already received these under possible It
tences. “beyond a to conclude
circumstances did not doubt”
reasonable for the years at ten Petitioner
sentence each for at issue
conviction felony convictions. prior six
Petitioner’s imposed 70-year sentence constitutionally inval-
ease, therefore, is
id.84 opinion agree
I with the well-reasoned affirm.
below and would *17 America,
UNITED STATES of
Plaintiff-Appellee, TSOSIE, Defendant-Appellant.
Vernon
No. 03-2209. Appeals, States
United
Tenth Circuit. 2, 2004.
Aug. (R. 2000) (Mar. Report and Recommendation